Just in time for the Winter Solstice, the Occupational Safety and Health Administration ("OSHA") issued a press release on December 21, 2011, advising that the agency launched a web page devoted to hazards workers may face during winter storm response and recovery operations.
Continue Reading...Although the data for 2011 is not yet final, OSHA expects problems related to employees falling off scaffolds, roofs, ladders, and other high places to be the top violations cited in 2011. In addition, the most frequently violated standard subsection is expected to be the rule covering residential construction (29 C.F.R. Section 1926.501(b)(13)). Other top violations are expected to include: hazard communication; respiratory protection; lockout/tagout; electrical, wiring methods; powered industrial trucks; electrical, general requirements; and machine guarding.
Continue Reading...Two events in the past week should remind New York employers of their legal obligation under section 11(c) of the Occupational Safety and Health Act not to discipline or terminate employees for reporting a safety hazard, or for filing a complaint with OSHA. On October 14, OSHA announced that it had obtained a consent judgment in a case brought against the John Galt Corporation and two managers, which orders them to pay a terminated employee $55,000 in back wages and to expunge all disciplinary records from the employee's personnel file related to his reporting of health and safety issues at the former Deutsche Bank Building in New York City. Earlier this week, OSHA filed suit against Promesa Systems Inc., a New York City nonprofit organization providing care to individuals with developmental disabilities, for allegedly firing an employee for voicing workplace safety and health concerns and for filing a complaint with OSHA. (The suit also names the organization's wholly owned subsidiary, East Harlem Council for Community Improvement Inc., as well as three managers.) The complaint alleges that a few days after the employee advised the defendants that she would consult OSHA regarding a work assignment, the defendants suspended her, and ultimately fired her under the pretext of poor performance. OSHA is seeking reinstatement, backpay with interest, and compensatory damages.
Over the past two years, the Occupational Safety and Health Administration (“OSHA”) has sought to expand significantly the reach of the General Duty Clause by issuing citations to employers for workplace violence and ergonomics issues. This expansion will soon reach another area: distracted driving. The agency plans to issue General Duty Clause citations to companies whose employees text while driving. This promise comes directly from the Assistant Secretary of Labor for OSHA David Michaels: "When OSHA receives a credible complaint that an employer requires texting while driving or who organizes work so that texting is a practical necessity, we will investigate and where necessary issue citations and penalties to end this practice." If you have employees who respond to hundreds of e-mails a day, with rapid response times required, and who frequently or occasionally travel during work time as part of their duties, you may receive a visit or an inquiry from OSHA. The impact on employers could be significant. According to a recent Pew Research Poll, 27% percent of all adults admit to texting while driving. Most troubling is the assertion that the agency will cite employers that "create incentives that encourage or condone" texting while driving. Employers that do not "condone" the practice may still receive citations if the agency concludes that an employer that expects fast responses to calls or e-mails thereby "encourages" employees who are driving to respond to texts or e-mails, instead of using a hands-free device or pulling off the road.
Employers can most effectively protect themselves from this enforcement effort by implementing and enforcing strong policies against the practice of texting while driving. Employees should be required to sign a policy explicitly stating they agree not to text while driving during work time, either as part of an employee handbook or when they receive any company-issued cell phone or texting device. Further, any employees found to be texting while driving during work time should be disciplined, up to and including termination.
An employer that has entered into a settlement agreement with OSHA, or that has been found in violation of OSHA regulations or the general duty clause--either by order of an Administrative Law Judge or as a consequence of accepting a citation--should adhere to all provisions of any agreement, and abate all cited conditions. An OSHA Area Office may assess a failure to abate penalty of up to $7,000 per citation item per day for each day the condition is not abated. Normally, the maximum time period is 30 days, for a maximum penalty per citation item of $210,000, but that time period may be increased in exceptional circumstances.
Last week, OSHA issued citations of over $200,000 each to two New York businesses. The first, totaling $210,000, was issued to Broadway Corp., doing business as Broadway Concrete, for failing to abide by a settlement agreement entered into after first receiving a citation for lack of fall protection back in 2008. OSHA conducted a follow-on inspection in January of this year, and in the new citation alleges that Broadway Concrete performed work at eight sites in New York City without adequate fall protection, in violation of the settlement agreement. The second citation issued last week, totaling $247,000, was issued to U.F.S. Industries, doing business as Sally Sherman Foods, for failing to abate conditions previously cited--lack of fall protection, machine guarding, and inadequate lockout/tagout--following a prior inspection at its Mount Vernon facility.
New York Area Offices have recently issued several other high-penalty failure-to-abate citations, suggesting that this may signal a new direction in enforcement in Region 2 (which includes New York and New Jersey):
The Occupational Safety and Health Administration (OSHA) may be considering an update of its list of permissible exposure limits (PELs) for many regulated chemicals and recognized air contaminants. According to BNA’s Daily Labor Report, at the May 26, 2010 American Industrial Hygiene Conference and Expo in Denver, OSHA Administrator David Michaels told the group that the Agency is in the process of assembling a task force to examine the possibility of updating current PELs. Most of the PELs have remain unchanged since first being set by OSHA in 1971, and revising the limits may be easier said than done. Because of that difficulty, Administrator Michaels urged that “all of us in the occupational safety and health community have to engage in support of this process because it is a very difficult one.”
This is not the Agency’s first attempt at implementing PEL revisions, and a prior attempt was not successful. By way of background, an employer is required under the “General Duty Clause” of the Occupational Safety and Health Act of 1970 to “furnish to each of his employees employment and a place of employment which are free from recognized hazards that are causing or are likely to cause death or serious physical harm.” The Act also requires employers to “comply with occupational safety and health standards promulgated” by OSHA. Pursuant to this authority, OSHA promulgated numerous PELs for air contaminants in 1971; these standards are organized into three industries: general industry, shipyard employment, and the construction industry.
The U.S. Occupational Safety & Health Administration (“OSHA”) recently launched an enforcement initiative focused on identifying employers who underreport workplace injuries and illnesses. This initiative—which OSHA has classified as a National Emphasis Program (“NEP”)—was prompted by recent government reports which found that a high percentage of workplace injuries and illnesses are not being reported by employers. Accordingly, employers should be mindful of the NEP, and that OSHA has made clear that its investigators will be paying particularly close attention to workplace policies and practices which have the effect of discouraging employees from reporting their job-related injuries and illnesses.
Continue Reading...On September 29, 2009, Acting Assistant Secretary for Occupational Safety and Health Jordan Barab announced the agency’s proposal to align OSHA’s current Hazard Communication (“HazCom”) Standard with the United Nations’ Globally Harmonized System of Classification and Labeling of Chemicals (“GHS”). The proposed rule was published in the Federal Register on September 30, 2009 and – if implemented without change – will significantly alter the labels and material safety data sheets that currently appear and accompany hazardous chemicals in the workplace. Significant aspects of the proposed rule are described below.
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